Wills & Estates

Question 1

Will Substitutes

Answer 1

Joint tenancy with right of survivorship
Revocable trusts
Pour-Over will (distributes property under trust)
Payable on death contracts
Deeds

Question 2

Jurisdiction

Answer 2

District court if contested, county court if uncontested

Question 3

Intestate share of separate property: Spouse + 1

Answer 3

• 1/3 of the separate personal property
• life estate in 1/3 of the separate real property
• Remaining assets go to the decedent’s descendants

Question 4

Forfeiture Clause

Answer 4

Inapplicable if challenge is for just cause and in good faith.

Question 5

Testamentary Capacity

Answer 5

1) 18 years old (when)
2) Nature of the act (why)
3) Nature/character of property (what)
4) Nature of his bounty (who)
5) Plan of disposition (how)

Question 6

Statute of limitations for probate

Answer 6

Generally 4 years from death, and closed 2 years thereafter

Question 7

Adoption by Estoppel

Answer 7

In intestate succession, when a parent makes a promise to a child or acts in a way to give the impression that they have a parent-child relationship

Question 8

Self-proved wills

Answer 8

• A self-proving affidavit is attached to an attested will, making the will presumptively valid.
• Once the self-proving affidavit is signed, it is prima facie evidence that the will was executed with all of the formalities.
• If a will does not contain signatures of attesting witnesses, but the self-proving affidavit does, the signatures on the affidavit can be used to validate (“prove up”) the will

Question 9

Surviving Spouse Rights

Answer 9

• Social security and pension plans

- Family allowance

Question 10

Abatement (reduction of gift)

Answer 10

Devised property is abated in the following order:

1) Intestate property
2) Residual gift
3) General bequest
4) Special bequest to others
5) Special bequest to relatives

• Demonstrative gifts are treated as specific gifts if they can be satisfied, otherwise as general gifts.

Question 11

Uniform Simultaneous Death Act

Answer 11

An heir must be proven by clear and convincing evidence to have survived the decedent by 120 hours in order to take under his will or by intestacy, unless the testator has provided otherwise in his will.

The 120-hour rule does not apply if its application would result in an escheat to the state.

In Texas, if a husband and wife die less than 120 hours apart, then one-half of their community property is distributed as if the husband had survived and the other one-half is distributed as if the wife had survived.

Question 12

Representation

Answer 12

Child stands in the parent’s shoes for intestate succession when parent predeceased the decedent.

Question 13

Revocation of a will

Answer 13

1) Subsequent Instrument that expressly revokes or is inconsistent
2) Physical act such as tearing, burning or crossing act with the intent to revoke
3) Operation of law (divorce)

Question 14

Lost Wills

Answer 14

Presumption that it is revoked.

Proponent must show the will’s existence with clear and convincing evidence, but a photocopy may not be admitted.

Question 15

Disclaimer

Answer 15

1) Declared in signed writing
2) describe the interest
3) delivered to personal representative

Question 16

Requirements for validity of a will

Answer 16

1) Signed writing (anywhere, but writing after the signature may not be given effect)

2) 2 witnesses sign in presence (conscious presence test) of testator
- Must be over 14 at the time of signing

3) Testamentary Intent
- At least 18 and of sound mind

Question 17

Priority of Claims

Answer 17

1) Expenses of decedent’s funeral, sickness and family allowance (discretionary by court, meant to keep family’s standard of living)
2) Administrative expenses
3) Secured claims
4) Child support in arrears
5) Taxes
6) Costs of decedent’s confinement in prison
7) Medical assistance claims by State
8) All other claims

Question 18

Codicil

Answer 18

Supplement to the will.

Question 19

Intestate share of community property: Spouse + 1 all related

Answer 19

All

Question 20

Kinds of probate

Answer 20

1) Dependent (court-supervised), claims presented by affidavit
2) Independent (not court-supervised)
3) Muniment of tile (if estate just has real property and no outstanding debt)

Question 21

How long must marriage last before interested party cannot challenge on the grounds that the decedent lacked capacity?

Answer 21

3 years.

Question 22

Holographic Wills

Answer 22

-Do not need to be witnessed.

• Must be only handwritten and signed
• Must show testamentary intent
• May amend a formal will or be amended by one

Question 23

Ambiguities

Answer 23

Two kinds: latent and patent. Extrinsic evidence can now resolve both.

Question 24

Probate procedures

Answer 24

• Notice to beneficiaries within 60 days
• Inventory of assets and claims within 90 days of appointment
• Give notice to unsecured creditors by publication
• Within 2 months, give notice to secured creditors by certified or registered mail, return receipt requested

Question 25

Anti-lapse statute

Answer 25

Provides alternative disposition for lapsed gifts (intended beneficiary predeceased testator).
-Lapsed gift intended for a descendant of the testator’s parent and is survived by issue.

Question 26

Contests to probate

Answer 26

• Made within 2 years of opening probate

- By an interested party

Question 27

Wrongful Death

Answer 27

Only the decedent’s spouse, children, and parents may bring an action for wrongful death, and only if the individual injured would have been entitled to bring an action for the injury if the individual had lived.

Question 28

Intestate share of community property for spouse and no descendants

Answer 28

All

Question 29

Incorporation by reference

Answer 29

1) Document is in existence
2) Testator intends incorporation
3) Sufficiently described to permit identification

Question 30

Issue’s shares

Answer 30

Per capita with representation

1) Divide the property equally at the first generation where a member survives
2) Shares drop down to surviving issue when a generation has deceased members
3) No surviving issue, that line gets cut off

Question 31

Intestate share of separate property: Spouse + 0

Answer 31

• All of the separate personal property
• 1/2 of the separate real property
• Remaining assets go to descendants or collaterals

Question 32

Priority for choosing an administrator

Answer 32

1) Spouse
2) Principal legatee
3) Any other legatee
4) Nearest living relative
5) Creditor of the decedent
6) Any other individual of good character

Question 33

Dependent Relative Revocation

Answer 33

Revives a revoked will that was revoked by mistake of law or fact.

Question 34

Collaterals

Answer 34

Decedent’s relatives through an ancestor (siblings, cousins, etc.)

Question 35

Calculation of the advancement

Answer 35

1) Add it back to the estate
2) Divide the shares
3) Subtract it from what that person receives

Question 36

Problems with testamentary capacity

Answer 36

1) Insane delusion
2) Undue influence (presumed with a confidential relationship)
3) Fraud (intent to deceive + purpose of influencing disposition), either in the inducement or the execution

Question 37

Unintentionally omitted children (pretermitted child)

Answer 37

• No other children - intestate share.
• Other children - equal share
• Cannot have provided for that child outside of the will, by non-probate means.

Question 38

Advancement

Answer 38

Reduces intestate share.

-Contemporaneous writing must declare it to be an advancement.

Question 39

Intestate share of community property: Spouse + 1 unrelated

Answer 39

Nothing